Judge: Douglas W. Stern, Case: 22STCV16809, Date: 2022-11-02 Tentative Ruling

Case Number: 22STCV16809    Hearing Date: November 2, 2022    Dept: 68

DANIEL CORDOVA vs SANDRA STILLWATER, Case No. 22STCV16809

Tentative Ruling:  Demurrer to Defendant’s Answer (Affirmative Defenses)

Plaintiff filed this action against Defendant for (1) breach of contract; (2) breach of implied warranty of habitability; (3) breach of implied warranty of quiet enjoyment; (4) negligence; (5) fraud by concealment; (6) violation of the Unfair Competition Law; and (7) private nuisance. The causes of action arise out of alleged problems that Plaintiff experienced during his tenancy at a property owned by Defendant.

Defendant filed her Answer on September 26, 2022. It is a general denial followed by 9 pages containing 48 affirmative defenses.  Plaintiff has now filed his Demurrer to Defendant’s Answer attacking the 48 affirmative defenses on the ground that the Answer (1) fails to state facts sufficient o state an affirmative defense and (2) that all of the affirmative defenses are uncertain.

In the view of the Court, it is regrettable that the tool of demurring to wholly conclusory affirmative defenses is underutilized. Code of Civil Procedure § 430.20 allows a plaintiff to demur to an answer on the basis that the answer “does not state facts sufficient to constitute a defense” and on the grounds that the answer is “uncertain.” 

As Plaintiff points out, nothing is pleaded factually by Defendant.  Defendant DENIED all the material allegations in the Complaint with her general denial.  No facts were alleged in any affirmative defense.  Since nothing at all is pleaded as a fact, the Answer amounts to the “empty set” or a blank page when it comes to factual pleading.

“Such “new matter” is also known as “an affirmative defense.” (Advantec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627, 63 Cal.Rptr.3d 195.) Affirmative defenses must not be pled as “terse legal conclusions,” but “rather ... as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’ ” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384, 282 Cal.Rptr. 508.) “A party who fails to plead affirmative defenses waives them.” (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442, 238 Cal.Rptr. 154.)”  Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812–813 [134 Cal.Rptr.3d 274, 319].  (Bold added.)

The 48 affirmative defenses contain no facts.  The pleading fails to allege facts sufficient to constitute a defense.  So too, the affirmative defenses, devoid of any factual allegations, are uncertain.

The demurrer to the 48 affirmative defenses is SUSTAINED.  Defendant is granted 20 days leave to amend.